Removing the Frame - Circumvention of Technical Measures Stopping the Sharing of Copyright Works is Communication to the Public, says CJEU

The use of images online seems to be near a free-for-all, where content is copied, shared and viewed across websites and with very little consideration on IP issues. One such way is 'framing', where you showcase an image on your website through the original URL on the website where it was uploaded. This allows for you to share the image, but not copy it across, i.e. 'framing' it within your web page. The CJEU looked at this matter some 6 years ago in BestWater, however, the issue has now come back again for determination at the CJEU. This time around the question related to the restriction of framing on websites.

The case of VG Bild-Kunst v Stiftung Preußischer Kulturbesitz concerned a German digital library called "Deutsche Digitale Bibliothek", operated by SPK, which networks German cultural and scientific institutions. The website contains links to digitized content stored on the internet portals of participating institutions; however, many of these are stored as simple thumbnails on the site, which then lead to the page on that subject matter. VG asserted that the license agreement between the parties allowing for the use of its catalogue works in the thumbnails required that adequate security measures be put in place by SPK when using the images on the DDB website. SPK objected to this, considering it to not be a reasonable requirement, and sought declaratory relief to this effect in the German courts, requiring the granting of the license by VG without such a condition.  After traveling through the German courts the matter ultimately ended up with the CJEU, who handed down their decision earlier this month.

The CJEU summarized the question posed as "...whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the embedding, by means of the technique of framing, in a third party website page of works that are protected by copyright and that are made freely accessible to the public with the authorisation of the copyright holder on another website, where that embedding circumvents protective measures against framing adopted or imposed by the copyright holder, constitutes a communication to the public within the meaning of that provision". 

Article 3 requires that EU Member States protect the exclusive rights given to copyright holders through national legislation, specifically in relation to communication to the public via wired or wireless means (i.e. the Internet). The focus for the CJEU was to decide whether the framing of the thumbnails on the DDB website is itself to be considered to be a communication to the public within the meaning of Article 3(1). 

The CJEU noted, as a primer, that a 'communication to the public' includes the transmission of works wirelessly via the Internet. Additionally, authorization of the inclusion of protected works in a communication to the public does not exhaust the right to authorize or prohibit other communications to the public of such works. As such, VG still retained the right to prevent any further communication it objected to. 

As has been discussed before, the actual 'communication to the public' of a work looks at two factors: (i) an ‘act of communication’ of a work; and (ii) the communication of that work to a ‘public’. 

Firstly, any act where a user, in full knowledge of the consequences of what he or she is doing, gives access to protected work is liable to constitute an act of communication. Secondly, for that act to be classed as a 'communication to the public', the protected work must be communicated to a public consisting of an indeterminate number of potential recipients. The communication itself has to be done using specific technical means different from those previously used, or to a new public, i.e. a public that was not already taken into account by the copyright holder when he or she authorized the initial communication. 

Following the consideration of the legal underpinnings of the matter, the CJEU turned to considering whether there had indeed been a communication to the public.

The act of framing, according to the CJEU, at first blush does constitute a communication to the public; however, as set out in previous CJEU case law, provided that the technical means used by the technique of framing are the same as those previously used to communicate the protected work to the public on the original website (i.e. the Internet), the work is not communicated to 'the public' as it isn't communicated to a new public. Since the works were left freely available on the websites, with no technological means implemented to prevent sharing, a new public wasn't possible and they tacitly authorized the distribution of the works by third-parties. However, if a link has been added to a website allowing for the circumvention of any technological means implemented to stop the sharing of the content, this would be a communication to the public and therefore an infringement. 

Tying matters to the case at hand, the CJEU saw that "...by adopting, or by obliging licensees to employ, technological measures limiting access to his or her works from websites other than that on which he or she has authorised communication to the public of such works, the copyright holder is to be deemed to have expressed his or her intention to attach qualifications to his or her authorisation to communicate those works to the public by means of the Internet, in order to confine the public for those works solely to the users of one particular website". If there then is sharing of those works, e.g. by framing, it would be communication to the public and an infringement (as that was not authorized by the copyright holder). 

Following further discussion, the CJEU concluded that "...Article 3(1)... must be interpreted as meaning that the embedding, by means of the technique of framing, in a third party website page, of works that are protected by copyright and that are freely accessible to the public with the authorisation of the copyright holder on another website, where that embedding circumvents measures adopted or imposed by that copyright holder to provide protection from framing, constitutes a communication to the public within the meaning of that provision".

The decision adds on to the already sizeable precedent pool on framing, and highlights that, if technical measures are employed to prevent the sharing of content beyond a specific website, the communication of that work would be an infringement of copyright. This makes sense, since the licensing, and subsequent protection, of works for use on a specific website would be pointless if that were rendered effectively void by allowing for the wanton sharing of that content. The case highlights the need for copyright holders to put in requirements for the implementation of measures to protect their rights so as to avoid implicit consent to the sharing of their works online. 

No Free-For-All - Is Posting a Freely Available Image Online Copyright Infringement?

Posting images online, whether it is on your own website or otherwise, is so easy these days and often feels quite harmless. The lack of effort and often consequence for the copying and sharing an image, even if protected by copyright, can lead to what feels like a dissemination near free-for-all on intellectual property on the Internet. With this in mind, where does one draw the line on what is allowed and what isn't, and how do we assert control over any unauthorised sharing, even if your content is freely available on different websites? The CJEU took on this question early this month, and handed down a decision that has prompted a great deal of discussion in the general public.

The case of Land Nordrhein-Westfalen v Dirk Renckhoff concerned a photograph taken by Mr Renckhoff. This picture was exclusively licenced to an online travel portal for use, and had no restrictions on the website where it was posted. In 2009 a school student in Waltrop (within the Nord Rhine-Westphalia region of Germany) used the image in their presentation, which was subsequently posted on the school's website. Mr Renckhoff subsequently sued the school district for copyright infringement for the posting of the image on the school's website.

Only one question was referred to the CJEU, which asked "…whether the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as meaning that it covers the posting on one website of a photograph which has been previously published without restriction and with the consent of the copyright holder on another website".

As many will be aware, 'communication to the public' includes two cumulative criteria that need to be considered: (i) an act of communication; and (ii) the communication of that work to a 'public'.

The first criterion simply concerns an act where "…a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether or not they avail themselves of that opportunity". The Court swiftly determined that the posting of the work on the school's website did amount to 'an act of communication'.

The danger of copyright infringement made the creation of
school presentations all the more thrilling

In terms of the second criterion, a 'public' "…covers all potential users of the website on which the photograph is posted, that is an indeterminate and fairly large number recipients". Again, the Court quickly determined that the act had been a communication to a 'public' under this definition. However, the Court did note that for the act to be an infringing 'communication to the public' it needs to be done so to a 'new public', i.e. "…a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work".

Looking at the right to prevent the unauthorized communication of works, the Court saw that "…[s]uch a right of a preventive nature would be deprived of its effectiveness if it were to be held that the posting on one website of a work previously posted on another website with the consent of the copyright holder did not constitute a communication to a new public". The Directive, under Article 3(3), does not exhaust the rights held in works once they have been communicated to the public by the rightsholder or an authorized third-party.

Ultimately they concluded that the communication of a work in a separate website would amount to a communication to a new public under the Directive, as the publication of the work was only intended for the users of the authorized website, and no other third-party sites. Limitations on the copying or use of the particular work are irrelevant in this assessment.

The Court did, however, have to navigate the issues set by their earlier decision in Svensson and BestWater (discussed more here and here), which allowed for the sharing of links to content that was freely available, as the intended public for those works was, in essence, the entirety of the Internet.

The cases were distinguished as they related to hyperlinks, and not copies of available works. The former is required for the proper operation of the Internet, whereas works themselves would not contribute to this aim to the same extent. Hyperlinks can also be disabled by the removal of the website it links to; whereas once an image has been copied elsewhere its removal is much harder. The Court therefore clearly emphasised the preventative nature of their conclusion, rather than the imposition of arbitrary preclusions to the sharing of content (innocent or not).

In short, the Court concluded that "…the concept of ‘communication to the public’… must be interpreted as meaning that it covers the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the consent of the copyright holder, on another website".

The decision is somewhat unsurprising, as the exhaustion of rights through the posting of any content on an authorized website would be devastating to many creating industries. The Court upheld the rightsholder's rights in their works, even if posted innocently on a school website. The case did briefly discuss exemptions relating to education and research, and one has to note that this was not a big part of the case and therefore not discussed at length. Any such use as in the case would most likely be fair use; the Court simply made sure that no rights were exhausted even if this were the case.

Clear Enough? - CJEU Further Clarifies Communication to the Public

The CJEU does not seem to be able to make its mind up on the topic of what amounts to a 'communication to the public', as is perfectly illustrated by the recent decisions in Svensson, C More Entertainment, BestWater and the Advocate General's opinion prior to the decision in GS Media (the very decision so many are waiting for). This difficulty in establishing a firm position on this very important subject has created many headaches for IP practitioners, who, by now, are grasping for any concrete and consistent judgments to this effect. While we have to still wait on the CJEU tackling GS Media, there is potentially some respite in the air via a decision discussing, yet again, what a 'communication to the public' might entail.

The case of Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v GEMA dealt with the a rehabilitation center, Reha Training, which provides post-operative treatment to better rehabilitate those who needed it after their medical procedures. The center itself included two waiting rooms and a training room (similar to a gym), where, between June 2012 and June 2013, they showed television programs for the patients who used the facilities in their recovery in installed TVs in the rooms. No permission was requested from GEMA (a German collection society) to display the content for the patients. GEMA then took Reha Training to court, asserting that the display of the TV content amounted to a 'communication to the public' under the InfoSoc Directive.

The referring court essentially asked whether the broadcasting of TV programmes in a rehabilitation center constitutes a communication to the public under several provisions (including the above Directive).

The CJEU first observed that, as the question referred to dealt with two Directives that mention a 'communication to the public', the provision in the InfoSoc Directive applies without prejudice to the application of the Rental Right and Lending Right Directive (which, similarly, offers the exclusive right to the author to communicate to the public a work, though through a more monetary provision). Although the wordings in each of the above Directives differs somewhat from each other, the Court concluded that their interpretation should be the same in order to keep a unified and coherent legal standard. They further clarified this, establishing that "...the different nature of the rights protected under those directives cannot hide the fact that, according to the wording of those directives, those rights have the same trigger, namely the communication to the public of protected works". Arguably, the interpretation of what amounts to a 'communication to the public' should be clear across the board, and this writer would agree that, unless specifically needed, the interpretation should be the same irrespective of the context of a given directive.

The Court then moved onto discussing the actual interpretation of the phrase. As the Court stated, this involves the assessment of several criteria, and the phrase has to be interpreted broadly. The criteria that are looked at are whether there has been an 'act of communication', and if that has been done to a 'public'.

No, Chuck, you can't communicate what you want,
even with a megaphone

In putting things in simple terms, the Court stated, as established, that an 'act of communication' is "...any transmission of the protected works, irrespective of the technical means or process used", and that every such transmission, to be legal, has to be authorized by the author of that work. Following on, the transmission of the work, to be an infringement of the above rights, has to be communicated to a 'public', which is deemed as "...an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons". The public cannot be a restricted, small subset of people, but 'persons in general'. The CJEU has also established that the communication has to happen to a 'new public', meaning people who the author did not take into account when they authorized the communication of the work (i.e. if the content is paywalled, any people who do not have access through said paywall would be, prima facie, a 'new public'). This also involves a clear and calculated part by the person communicating the work to the new public, where their intervention is essential for the user to receive that broadcast. Without the intervention and the clear 'targeting' by the communicator, there would be no communication to a public.

In the earlier decision in SCF v Marco Del Corso the Court discussed this type of communication in a similar context, holding that the broadcast of TV programming in a dentist's office is not a communication to the public, as the patients do not visit the office to primarily watch TV, which in turn does not increase the users of that particular practice (or its attractiveness to a new public).

The Court concluded that Reha Training had indeed communicated the works to a public, as, drawing an analogy to previous case law involving restaurants, spas and hotels "...the operators of... [the] establishment carry out an act of communication where they intentionally broadcast protected works to their clientele by intentionally distributing a signal by means of television or radio sets which they have installed in their establishment". The clientele would not be an insignificant number, and the intervention of the operator of the center is key for their enjoyment of those works, and were not in the contemplation of the original broadcaster as an audience for the works, making them a 'new' public. The communication of the works also makes the center more attractive to prospective clients, giving it a competitive advantage (and thus benefiting from the communication).

The case is a curious development, and further cements the CJEU's position on the concept of a 'new public', which has been somewhat rejected in the Advocate General's opinion in GS Media. As the decision in the case looms in the horizon, it will be interesting to see whether this decision has a big impact on it, and whether the mere provision of hyperlinks would be an intervention that is indispensable for the enjoyment of the works, especially considering the material is freely accessible online to begin with (rather than locked behind a paywall). This writer believes the CJEU will not deem the sharing of hyperlinks to be a communication to the public, but the Court's track record does show that there are no guarantees to this effect.

Source: IPKat

Links Galore - Hyperlinking Faces Its Third Challenge

After the Svensson and BestWater decisions hyperlinking seemed to already be a matter, which has been dealt with extensively and thoroughly. Even so, a third decision loomed in the horizon, hopefully shedding the final bit of light needed into the question of hyperlinking and copyright infringement. After the Svensson decision the questions posed to the Court were reduced to all but one, leaving more significance to that final question and its potential impact on the issue.

The case in question was C More Entertainment AB v Linus Sandberg, which dealt with the broadcasting of ice hockey games, which were supplied by C More for a nominal fee for those wishing to view the games live online as opposed to on TV. Linus Sandberg created links on a website to allow access to two ice hockey games without having to pay C More for the pleasure of doing so, allowing for users to watch paid-for content beyond their paywall protection; however C More quickly put a stop to this, and Mr. Sandberg only was able to post links to two games. He was also taken to court in Sweden over copyright infringement.

As said above only one question was referred to the ECJ: "May the Member States give wider protection to the exclusive right of authors by enabling “communication to the public” to cover a greater range of acts than provided for in Article 3(2) of [Directive 2001/29]?" The question, prima facie at least, clearly requires guidance on whether Member States can extend the coverage of what constitutes a 'communication to the public' beyond what is expressly provided in the Directive, namely the posting on hyperlinks to paid-for content such as hockey games.

In light of the Directive (namely Article 3) and its Preamble, the Court swiftly determined that Member States' rights in extending coverage could potentially cover the posting of hyperlinks to live, paid-for content. This, however, only applies to on-demand services, which the above service is not, as live broadcasts are not watched by individuals at a time that is convenient to them, but rather, at a strict prescribed time. The Court dismissed its applicability to the current situation, at least in light of Article 3, deeming Mr. Sandberg's actions not an infringement of the right of communication to the public via his hyperlinks.

Hyperlinks can be enticing...

With this in mind, the Court did not oust the possibility that Member States could extend the coverage of the provision beyond what has been expressly set out in the Directive. The aim of the Directive is to harmonize copyright within the EU, but does not, as was seen by the Court, "...prevent or remove any differences between the national legislations as regards the extent of the protection which the Member States may grant to the holders of the rights referred to in Article 3[] with regard to certain acts, such as those at issue in the main proceedings, which are not expressly referred to in that provision".

Following their argument the Court saw that under Directive 2006/115 Member States had the ability to give more far-reaching protection in relation to copyright when it comes to broadcasts and communication to the public. Article 8 even includes content, which is restricted by payment, as well as wireless communication of such content, for example via the Internet.

The Court then summarized its judgment on the matter: "It follows that Article 3(2) of Directive 2001/29 must be interpreted as not affecting the option open to the Member States, set out in Article 8(3) of Directive 2006/115, read in conjunction with recital 16 to that directive to grant broadcasting organisations the exclusive right to authorise or prohibit acts of communication to the public of their transmissions provided that such protection does not undermine that of copyright... Having regard to all the foregoing considerations, the answer to the question referred is that Article 3(2) of Directive 2001/29 must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright".

While the decision is by no means as influential, at least in this writer's opinion, as Svensson or BestWater, to an extent, it still sets a potentially influential precedent should Member States wish to enact more wider coverage in relation to the communication to the public right. It does still leave the question of hyperlinking in more doubt, as links to newspaper articles have been deemed to infringe copyright, when links to live broadcasts would not. What happens now after the myriad of hyperlinking decisions in Member States remains to be seen; however the law is begging for more correction in terms of national application.

Source: IPKat

Framed Questions - ECJ Takes on Content Framing

As social media has changed how we interact with one another, it also has profoundly changed the culture and environment where copyright (and other intellectual property rights) reside. Videos, pictures and other content can very easily go 'viral', especially through sharing via Facebook, Twitter and other websites, even sans the original source of the content. This aggressive sharing and consumption of content can clearly yield huge benefits, both monetary and other positive outcomes; however it presents a much darker side to the sharing of this content, more specifically the copying and distribution of infringing content. Whether it be re-hosting a video originally on YouTube, or copying and watermarking other people's popular images, the Internet is full of opportunistic people rearing and ready to cash in on the next 'viral' hit. Not all sharing is bad, and often websites can host content and rightfully attribute the content to its source, or just link directly to it - which presents a question: can you share copyrighted content, especially through what is called 'framing' (placing someone else's content within the confides of your own website, but not directly hosting the content), or are you infringing on the rights through linking to this content and placing in within your own website?

The case, which endeavored to answer this question, was BestWater International GmbH v Michael Mebes (judgment only available in German or French). BestWater International are a company in the business in making and selling water filtration systems, and in an effort to boost their sales, made a 2-minute promotional video and uploaded it to YouTube, undoubtedly attempting to reach the droves of water filtration enthusiasts using the site. Michael Mebes and his co-defendant Stefan Potsch are independent agents for BestWater's competitor, who embedded a video link to BestWater's promotional video on YouTube (which they themselves uploaded onto the service). BestWater subsequently sued the pair for copyright infringement, and the case finally culminated in the European Court of Justice late last year. In the absence of a judgment in English (which this writer was waiting for) the information conveyed in this post has been parsed from several sources; however hopefully represents an accurate reading of the case.

The question posed to the Court was simple: "Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website... constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?" In a lot of ways the case is similar to one discussed on this very blog on an earlier note; Svensson v Retriever. Even so, Svensson merely discussed the distribution of content, which is freely available on another website, when BestWater's focus is on framing that content within your own site, arguably presenting it, in a roundabout way, as your own. 

One should always be careful when framing things

Thinking back to Svensson, the decision in the case established, quite firmly, that if a work is communicated to the public, and is freely available, distributing that content without actually making new copies of it, does not constitute a communication to a new public and infringe copyright. Unceremoniously the Court saw that "[t]he embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Directive 2011/29/EC] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication". 

What is key in the BestWater decision, much like in Svensson, is the authorization of the party who communicates the original work to the public. If the content is beyond the reach of most Internet users, framing the content clearly infringes copyright; however, should the party provide the content for all Internet users (i.e. freely available through services like YouTube), it will not infringe copyright. Should a third-party, without the consent of the copyright holder, upload a video to YouTube, and then promptly frame it on their website, they will be infringing copyright within the meaning of BestWater and Directive 2001/29/EC.

The two decision reflect a clear need for change in attitudes of copyright holders when posting content online. Framing applies just as well to images and sound files as it does to video, potentially causing issues to those who are not careful in their communication of their copyrighted content. This writer, for one, believes this approach is correct, even with the hazards it potentially presents. Should you choose to share content with very little regard to its restrictions, you choose to share your content with more people that you might have intended to, and for users to be punished for your mistake seems highly inequitable. Nevertheless, individuals and companies should be more careful in their content sharing, especially when considering the openness of the Internet, and the potential benefits more open sharing can give you.

Source: IPKat